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Divorce Help | July 5, 2020

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Can Your Spouse Deliberately Default on a Mortgage During Divorce? - Divorce Help

Brian Beltz

Sometimes, things get heated and downright nasty during divorce.  There are all sorts of stories of spouses doing vindictive things to one another in an ever escalating game of revenge one-upsmanship.

Sure, you spouse may smash your TV, report you for domestic violence, even cut the house in half – seriously, this happened – but can they deliberately default on a mortgage to get back at you?

The short answer is yes, but a longer explanation is needed.

Yes, a spouse can deliberately default on a mortgage during a divorce, but according to San Jose divorce lawyer Nicole Aeschleman, it’s not that simple.   “I have certainly had this happen and we got court orders to require the payment.  It doesn’t mean that there is compliance, but then you have to go in and enforce the orders.  Sometimes the end result is that the home has to be sold in order to preserve the asset from foreclosure if there will be continued defaults.”

According to Boston divorce attorney David Wilkinson, “If you discover your spouse is deliberately not paying a loan you are on then you can obtain an order in the Family Court to force the other spouse to make the monthly payments.  Generally, spouses owe a fiduciary duty to the other to act in the community’s best interest.  Thus, if the loan was incurred during the marriage, then the spouse occupying the residence is obligated to pay the mortgage.  The Family Court will not allow a spouse to reside in a family residence and deliberately not pay the mortgage.”

So there you have it.  Of course your spouse CAN attempt to default on the mortgage out of spite – just like they CAN declare themselves the king or queen of England.  However, in most cases an attorney and family law court can order and enforce them to either pay the mortgage or sell the house.

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